Bail in Ghana: An Introduction:
Introduction:
This note will discuss the meaning of bail, its constitutional foundation, its discretionary nature, and highlight the types of bail for subsequent discussions.
Meaning of Bail:
In the case of Republic v. Registrar of High Court; Ex Parte Attorney-General [1982-83] GLR 407-421 , the Supreme Court of Ghana defined bail as:
The procedure by which a person arrested or imprisoned for an offence under our law is set at liberty. That liberty is a conditional liberty. It is conditional upon the appearance in court for further proceedings of the person to whom bail has been granted. The sole aim of an application for bail is thus to secure the release, pending trial, of the person concerned. It is granted on the condition also that the person concerned furnishes sufficient security to ensure his appearance for the further proceedings.
In Kpebu (No. 1) v. Attorney-General Civil Appeal No. J1/7/2015 , the Supreme Court, speaking through Dotse JSC, also stated that:
Bail is with cash or it’s equivalent such as the bail bond that a court will accept in exchange for allowing the accused person or suspect to remain at liberty until the conclusion of the trial or investigations. The Bail so given creates an obligation for the accused person to make all required court appearances.
It may also be defined as a process of procuring the release of a person from legal custody by an undertaking that the person will appear in court for further proceedings.
Constitutional Foundation of Bail:
The constitutional provisions to be discussed as providing a foundation for bail are Articles 14(3), (4) and 19(11). These are now discussed.
1. The Article 14(3) Requirement that a Person Arrested Should be Brought before a Court Within Forty-Eight Hours after Arrest as a Basis for Bail:
In Article 14(3) of the 1992 Constitution, it is provided that:
3. A person who is arrested, restricted or detained
a. for the purpose of bringing him before a court in execution of an order of a court; or
b. upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released,
shall be brought before a court within forty-eight hours after the arrest, restriction or detention.
This provision was analysed by the Supreme Court in Kpebu (No. 4) v. Attorney General [2019] GHASC 90 (18 December 2019) . In that case, the plaintiff invoked the original jurisdiction of the Supreme Court for a declaration, among others, that on a true and proper interpretation of Article 14(3) of the 1992 Constitution , a Saturday, a Sunday, a public holiday, anytime during a civil unrest, and any other day that the courts in Ghana cannot sit would be counted in reckoning the 48 hours within which a person arrested must be brought before a court. The court held that the requirement that the custodian brings a person before a court of law within 48 hours is unambiguous and means exactly “within 48 hours”, which includes all weekends, periods of strike action, and periods of civil unrest subject to the reasonable assurance of the safety and security of judicial officers. Essentially, the court, in delivering its unanimous judgement through Sophia Akuffo CJ, said:
it is essential that every unit of the Police Service of Ghana become aware of the need to comply with the spirit of article 14(3)(b), which empowers the police to release an arrested person. Our understanding of this is that, having arrested a person, there is nothing that compels the police to hold on to that person and certainly is there is no possibility of that person being brought before a court within the 48 hours, he/she ought to be released . Thus, as a cogent example, if a person is arrested and detained or restrained by the police in the evening of Maundy Thursday there can be no justification to hold him/her until the Tuesday after Easter Monday. The police have the power, and ought, to release the person on whatever reasonable condition/conditions, such as that he/she reports daily to the unit and appears in court the first working day or any other date, as they will determine.
The release of a person upon failure of the police to bring him before a court within forty-eight hours is often in the form of a police enquiry bail.
2. The Article 14(4) Requirement that an Accused Person who is not Tried Within a Reasonable Time be Released as a Basis for Bail:
In Article 14(4), it is provided that:
Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.
This provision is essentially on the right of an accused to bail if he is not tried within a reasonable time. What amounts to reasonable time for the purpose of this provision was characterised in the case of Dogbe v. The Republic [1976] 2 G.L.R. 82 as follows:
it can safely be said that reasonable time for an act is such period of time the duration of which may be fairly conceded by any reasonable person having regard to the purpose for which the time is required, the nature of the act or duty to be performed and all the attendant circumstances reasonably existing or anticipated or supervening.
This definition was cited with approval in the case of Brefo v. The Republic [1980] GLR 679, where the court added that
An unreasonable delay necessarily means that the person on whom it is incumbent to act has been unreasonable in not acting timeously.
In that case, the applicant was taken into custody on 17 April 1976 pending his trial for murder. After committal proceedings were completed before the District Court, he was committed to the High Court for trial on 10 January 1979. The trial of the case was further delayed by what the court describes as the unavoidable absence of some prosecution witnesses and by other murder cases committed to the High Court before the applicant’s case. The applicant applied for bail pending trial. The court noted that Article 15 (4) of the 1969 Constitution, which is similarly couched as Article 14 (4) of the 1992 Constitution, makes provision for bail when there is unreasonable delay. In refusing the application, the court held that although there was delay in trying the applicant, the delay could not be said to be unreasonable because it was not a result of the fault of the court or the Attorney General.
The right of an arrested or detained person to bail on the basis of him not being tried within a reasonable time, was considered in the cases of Gorman vs. Republic [2003-2004] 2 SCGLRand Martin Kpebu (No. 2) v. Attorney-General (No. 2) [2015-2016] 1 SCGLR 143 .
In the case of Gorman v. The Republic (supra), the appellants were arraigned before the Greater Accra Regional Tribunal and were granted bail. The Attorney General appealed against the grant of bail, and the appeal was allowed by the Court of Appeal. On appeal to the Supreme Court, the appellants argued that the decision of the Court of Appeal downplayed the constitutional provisions providing for the pre-trial release of an accused person on bail in favour of principles governing bail in Section 96 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) . They argued that Section 96(6) of Act 30 allows the court to consider factors such as the nature of the accusation in deciding whether to grant or refuse bail; and that these factors are not mentioned in the 1992 Constitution and are, therefore, not compatible with it. The Supreme Court of Ghana, in dismissing the contention of the appellants, advanced that the right to be granted bail under Article 14(4) applies to instances where an accused in detention is not tried within a reasonable time. When that is the case, the accused is entitled to bail irrespective of the nature of the accusation and the severity of the punishment as contained in Article 96(6) of Act 30. Further, when an accused is not tried within a reasonable time, he is still entitled to bail even if his offence is mentioned in Section 96(7) of Act 30 as part of the offences for which bail should not be granted.
Also, in the case of Kpebu v. Attorney General (Kpebu No. 2) , the Supreme Court of Ghana noted that Article 14(4) allows for a person charged with any offence to apply for bail if there is unreasonable delay in the pre-trial proceedings or during the trial where the accused is placed in custody. Speaking through Benin JSC, the court noted that Article 14(4) has additional support in Article 19(1), which provides that:
A person charged with a criminal offence shall be given a fair hearing within a reasonable time.
His lordship added that the provision in Article 19(1), when taken together with Article 14(4), “confirms the importance attached to time in dealing with criminal offences lest the rights of the individual should be abused, even for those who are on bail.”
3. The Article 19(2)(c) Requirement that an Accused Person be Presumed Innocent Until Proven Guilty as a Basis for Bail:
In Article 19(2)(c), it is provided that:
A person charged with a criminal offence shall-
c. be presumed to be innocent until he is proved or has pleaded guilty.
This provision has been interpreted in the cases of Okoe v. The Republic [1976] 1 GLR 80-99, Gorman v. The Republic [2003–2004] 2 SCGLR 784 , and Kpebu v. Attorney General No. J1/13/2015 (Kpebu No. 2) .
In the case of Okoe v. The Republic (supra), Taylor J. advanced that:
This right to bail so tacitly taken to exist by the legislature would seem to be inextricably wound up with the idea inherent in the very foundation of our adversary system of criminal justice, which decrees that an accused person must be presumed innocent until he is proved guilty. This idea so basic to the system of jurisprudence which we inherited from the common law has now come to rest in article 20 (2) (b) of our Constitution, 1969, as a fundamental constitutional rule of law, has been given a new lease of life in spite of the suspension of the operation of the Constitution, in section 3 (2) of the Proclamation, 1972.
In the case of Gorman v. The Republic (supra), the Supreme Court stated that the presumption of innocence does not import an automatic right to bail, as contended by the appellants. They added that if any article in the 1992 Constitution could be said to contain a presumption of bail, it would be Article 14(4), which embodies a duty to grant bail when the accused is not tried within a reasonable time.
In the more recent case of Kpebu v. Attorney General (supra) , the Supreme Court appears to have taken a slightly different position. In that case, the court was called to determine whether Section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) , which provides that the court shall refuse to grant bail in a case of treason, murder, robbery, rape, and defilement, among others, was contrary to Article 19(2)(c). Their lordships, in holding the Section to be unconstitutional, advanced that it condemns persons suspected of committing certain crimes to suffer, and this is contrary to the presumption of innocence until proven guilty in Article 19(2)(c) . In that case, their lordships discussed how the grant of bail is linked to the presumption of innocence as follows:
The grant of bail is one of the tools available to the court to ensure that a suspect or an accused, as the case may be, is guaranteed his innocence until the court has found him guilty…Therefore, in my humble view any legislation, outside the Constitution, that takes away or purports to take away, either expressly or by necessary implication, the right of an accused to be considered for bail would have pre-judged or presumed him guilty even before the court has said so. That would be clearly contrary to this constitutional provision which guarantees his innocence until otherwise declared by a court of competent jurisdiction.
Thus, Section 96(7) was seen to be taking away the discretion of the courts to grant bail, characterised as one of the tools available to the courts to guarantee the innocence of the accused until he is proven guilty.
Discretionary Nature of Bail:
The grant of bail is discretionary. In the case of Republic v. Registrar of High Court; Ex Parte Attorney-General (supra) , the Supreme Court, speaking through Charles Crabbe JSC, said:
The grant of bail was an exercise of a discretionary power and the main consideration was the likelihood of the person concerned failing to appear for further proceedings.
In Section 96(1) of Act 30, it is provided that:
1) Subject to the provisions of this section, a court may grant bail to any person who appears or is brought before it on any process or after being arrested without warrant…
The phrase “may grant bail to any person” reveals this discretionary nature of bail. Also, see Section 33(1) the Court Acts of 1993 (Act 459) .
Types of Bail:
In Ghana, there are three types of bail:
These types of bails are discussed in subsequent notes.
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